New Title IX Policy Could Upend College Procedures

Following the announcement of proposed changes to Title IX regulations by the Department of Education, college officials expressed concern about how the new policies would change the college’s procedures, along with appreciation for the increased flexibility that the changes might allow.

The proposed changes to Title IX regulations regarding how colleges handle complaints of sexual misconduct were released on Nov. 16, a little over a year after the Department rescinded Obama-era guidelines on the subject. Supporters of the proposed policy see it as correcting a system that unfairly favors survivors of sexual assault, while critics fear that the modifications may give even more leeway to perpetrators while reducing liability for colleges. The proposed adjustments have not yet been finalized and are available for public comment until Jan. 28, 2019.

In a message scheduled to be sent to the community on Wednesday as of press time, President Laurie L. Patton said that the proposed policies as written “would require significant changes in how Middlebury handles reports of sexual assault and sexual harassment.” She noted that Middlebury intends to submit comments to the Department of Education both “directly and in collaboration with other organizations.”

College spokesman Bill Burger expressed concern that when a new policy is enacted it may cause fewer students to report assault and harassment to the college. He reiterated that the college remains committed to a fair Title IX process that upholds the rights of all members of the community.

Some parts of the proposed policy differ significantly from the way the college’s Title IX Office currently operates. Perhaps the most controversial aspect of the new policy is the requirement that the advisors to both parties be allowed to cross-examine the other party and all witnesses. The college stopped offering live hearings a number of years ago, and many consider hearings to be an unnecessarily stressful way of adjudicating a complaint.

“We believe a fair process should include gathering as much relevant, credible evidence as possible, while avoiding the creation of undue stress for the parties,” Burger said. “We believe our process already serves the primary purpose of cross-examination, but in a less stressful setting for the parties and witnesses.”

Requiring hearings as part of the process may also limit the amount of information available in any given case because colleges cannot compel witnesses to testify. As Patton wrote, the new requirement to “ignore information provided by a party or witness who declines to be cross-examined would limit the evidence that may be considered and could impact the fairness of the adjudication.” Hearings could also pose an extra financial burden to colleges by forcing them to find and fund legal counsel for students who cannot afford it.

The new guidelines also state that Title IX offices cannot instruct either party to not speak with the other about the facts of their case. Burger expressed concern about how this prohibition will impact investigations in a small college community.

“This presents significant challenges for conducting fair and accurate investigations, not to mention assessing credibility if the people involved have all been talking to each other about the incident,” he said. “We believe there is also an increased risk for ostracizing, threatening and/or retaliatory behavior, which could adversely impact a complainant’s or respondent’s ability to participate in their educational programs.”

The new policies would also open up additional avenues for colleges to resolve complaints informally. In her statement, Patton expressed interest in instituting an informal resolution option to resolve cases.

“This flexibility may offer opportunities to deepen our engagement with Restorative Practices,” she wrote, noting that such methods would only be employed in “appropriate cases where the parties make fully informed and voluntary choices to participate.”

Patton pointed out that not everything about the college’s current policy would have to change under the proposed guidelines. This is in part because the new policy would offer colleges and universities more freedom to craft their own procedures in several key areas. For example, Patton confirmed that the college will continue to use the same standard of proof: the preponderance of the evidence standard. Currently, Title IX mandates that all colleges use this standard, one of the lowest burdens of proof in the U.S. legal system, to adjudicate violations. The new policy would allow colleges to increase the burden of proof to “clear and convincing evidence” standard, which some fear would make it harder to find the respondents responsible. However, Patton’s statement made clear that the college will stay the course.

The new policy would also permit colleges to stop adjudicating sexual assault and harassment claims when the incident in question occurred off campus. The college’s current practice, in compliance with current federal and state law, is to investigate all “conduct that takes place on or near Middlebury premises or property; occurs at or in connection with a Middlebury-related event; or occurs off-campus but may represent a threat to the safety of the Middlebury community or any of its members.” According to Burger, the college will maintain its current policy in this area and continue to investigate all complaints by students.

As of now, no changes to the policy have been finalized. With the notice and comment period still open, individuals are welcome to send comments to the Department of Education with feedback about the proposed changes via the Federal eRulemaking Portal.

Chellis House will also be hosting an event where students can receive assistance in submitting their comments on Monday, Dec. 10, from 2-4 p.m.